…this Nation’s historical tradition of firearm regulation

Creating rules for anything, a game, a business, the interaction between parties, there can be negative rules, or there can be positive rules.

You can have a set of negative rules. You cannot touch the ball with your hands. This is a rule in soccer.

What was the original intention? We don’t know. What we do know is that it is legal to hit the ball with your head, knees and body, as long as you don’t touch the ball with your hands.

This means that what is not forbidden is allowed.

If on the other hand, the rules are written in a positive mode. You can only touch the ball with your legs from the thigh down. You have inverted the restrictions. What is not permitted is not allowed.

You don’t have to state “you cannot touch the ball with your hands”. This is subsumed from the default negative. If it is not permitted, you cannot do it.

Our Constitution was written as a set of positive rules for the government. The government is authorized to do X, Y and Z. They are, by design and default, not allowed to do A through W.

When the Bill of Rights was ratified, we added negative rules. “Congress shall make no law…”

There is no conflict between the amendments and the original Constitution. The Bill of Rights made explicit that which was implicit. The government shall not do C, G, and W!

Unfortunately, this left the door open for the government to do evil. “Since the Constitution doesn’t say anything about A, B, and D, we can intrude in that area!”

The explicit addition to our Constitution made this argument possible.

Since the state always seeks to increase their power over The People, this is a fight that has been going on for decades.

In Bruen, the Court made it clear that the state must …demonstrate that the regulation was consistent with this Nation’s historical tradition of firearm regulation. —New York State Rifle & Pistol Assn., Inc. v. City Of New York, Oops. Novel citation pattern. 8 (U.S. 2020).

The state bears the burden of demonstrating to the court that the law is consistent.

Not the plaintiffs, (Good Guys), nor the court, but the state.

For the state, this is a losing position. “Shall not be infringed!” is powerful language. They want that history to be as open as possible and as wide-reaching as possible.

In the early post-Bruen cases, they through the legal dictionary at the wall to see what would stick. In Duncan, the first iteration of “historically reinvent” regulations ranged from the 1500s through the mid-1900s. They were forced to reduce that for their second iteration, I think it was limited to 50 or 100.

Today, they are attempting a different path. Using the Rahimi language, Bruen was “not meant to suggest a law trapped in amber.—United States v. Zackey Rahimi, No. 22-915 (U.S.) as amplified by Justice Barrett:

Many courts, including the Fifth Circuit, have understood Bruen to require the former, narrower approach. But Bruen emphasized that “analogical reasoning” is not a “regulatory straightjacket.” 597 U. S., at 30. To be consistent with historical limits, a challenged regulation need not be an updated model of a historical counterpart. Besides, imposing a test that demands overly specific analogues has serious problems. To name two: It forces 21st-century regulations to follow late-18th-century policy choices, giving us “a law trapped in amber.” Ante, at 7. And it assumes that founding-era legislatures maximally exercised their power to regulate, thereby adopting a “use it or lose it” view of legislative authority. Such assumptions are flawed, and originalism does not require them.
—id. Barrett, concurring.

Under Bruen, silence in the historical record indicates that the current has no support in this Nation’s historical tradition of firearms regulation. Now, the state claims that silence does not mean a loss. Instead, they claim that it just indicates that they didn’t wanna at the time. They could have, if they wanted to. Since they could have, the state is now authorized to do so today.

This shifts the burden to The People to show that the state in 1791 not only didn’t want to pass such regulations, but instead were prohibited by the Second Amendment.

Nasty stuff.